Testimonial Privileges Flashcards
(12 cards)
What Privilege Law Apllies is Federal Court
- FQ = Federal Common Law
- Diversity = State privilege law
Federally Recognized Privileges
The Federal Rules have no specific privilege provisions; privilege in federal courts is governed by common law principles as interpreted by the courts. Federal courts currently recognize the following major privileges:
* The attorney-client privilege;
* Spousal immunity;
* The privilege for confidential marital communications;
* The psychotherapist/social worker-client privilege;
* The clergy-penitent privilege; and
* Governmental privileges
Other privileges not listed above (such as physician-patient, accountant-client, professional journalist) are only recognized by certain states.
General Considerations (Privileges)
- Privilege is personal to holder
- Confidentiality (communication made in confidence)
- Comment on Privilege Forbidden (Neither counsel for the parties nor the judge may comment on someone’s claim of privilege.)
- Waiver (Failure to Claim, Voluntary Disclosure, Contractual Waiver)
- Evesdropper does not destroy privilege
Attorney-Client Privilege
The privilege applies to:
* Confidential communications,
* Between attorney and client (or representatives of either),
* Made during professional legal consultation,
* Unless the privilege is waived or an exception is applicable
* Disclosures made before the attorney accepts or declines the case are covered by the privilege.
* Corporations are “clients” within the meaning of the privilege, and statements made by corporate officials or employees to an attorney are protected if the employees were authorized or directed by the corporation to make such statements.
* Communications made to third persons (such as administrative assistants, messengers, or accountants) are confidential and covered by the privilege if necessary to transmit information between the attorney and client.
* When joint clients have common interest, their communications with attorney are not privileged if they sue eachother
* Client holds privilege, but attorney can claim it for client
* Privilege applies indefineitely, even after death
Attorney-Client Privilege (Major Exceptions)
- Attorney’s services sought to aid in crime or fraud
- Client put legal services at issue
- Dispute between attorney and client
- Parties claiming through same deceased client
Attorney’s Work Product
Although documents prepared by an attorney for their own use in a case are not protected by the privilege, they are not subject to discovery except in cases of necessity.
Limitations on Waiver of Attorney-Client Privilege and Work Product Rule:
* Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege or work product protection only with respect to the disclosed material.
* Undisclosed privileged material is subject to the waiver only if (1) the waiver was intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) the material should be considered together to avoid unfairness.
* There is no waiver if the disclosure was inadvertent and the holder took reasonable steps to prevent disclosure and rectify the error.
Physician-Patient Privilege (State Privilege Only)
- Professional relationship existed
- The information was acquired for purposes of diagnosis or treatment
- The information necessary for diagnosis or treatment
Exceptions:
* The patient puts their physical condition in issue (for example, in a personal injury lawsuit);
* The physician’s assistance was sought to aid wrongdoing (for example, to help the patient commit a crime or tort);
* The communication is relevant to an issue of breach of duty in a dispute between the physician and patient (such as a medical malpractice case);
* The patient agreed by contract (in an insurance policy, for example) to waive the privilege; or
* It is a federal case applying the federal law of privilege (because, again, federal courts do not recognize a general physician-patient privilege)
Criminal Proceedings:
* In some states, the privilege applies in both civil and criminal cases.
* In a number of others, it cannot be invoked in criminal cases generally.
* In still other states, the privilege is denied in felony cases, and in a few states, it is denied only in homicide cases.
Phychotherapist/Social Worker-Patient Privilege
- Operates like attorney-client privilege
- No privilege where patient puts mental condition at issue
- Recognized by Federal courts
Spousal Testimonial Privilege - Criminal Cases Only (Spousal Immunity
Prevents defendant’s spouse from testifying against defendant in criminal case
* Spouse must be married at time of trial
* There must be a valid marriage for the privilege to apply, and the privilege lasts only during the marriage (even if the events at issue took place before the marriage)
* Witness-Spouse hold privilege (This means that the witness-spouse cannot be compelled to testify, but may choose to do so)
Confidential Marital Communications Privilege
- Applies in any civil or criminal case
- Either spouse can claim privilege
- Spouses must have been married at time of communication (privilege remains if they divorce)
- Communications must have been confidential in nature
Confidentiality:
* Private communications between spouses are generally presumed to be confidential, but this is not always the case.
* The communication must be made in reliance upon the intimacy of the marital relationship. Threats or abusive language are not privileged.
* Furthermore, communications made in the known presence of a third party are not privileged (though statements may still be confidential and privileged if made in the presence of young children living in the home).
When Neither Marital Privilege Applies
- Communications or acts in furtherance of a future joint crime or fraud;
- In legal actions between the spouses; or
- In cases where a spouse is charged with a crime against the testifying spouse or either spouse’s children
Other Privileges
Clergy-Penitent Privilege:
* Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege. For example, the privilege will apply only if the penitent made the communication to the clergy member in the clergy member’s capacity as a spiritual adviser.
Privilege Against Self-Incrimination:
* Under the 5th Amendment to the Constitution, a witness cannot be compelled to testify against themselves. Any witness compelled to appear in a civil or criminal proceeding may refuse to give an answer that ties the witness to the commission of a crime. This privilege is covered in more depth in your Criminal Procedure materials.
Governmental Privileges:
* Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the informer’s identity is voluntarily disclosed by a privilege holder (an appropriate government representative).
Accountant-Client Privilege (State Only):
* Many states recognize a privilege for statements made to an accountant, and the elements of this privilege are very similar to the attorney-client privilege. However, there is no federal accountant-client privilege.
Professional Journalist Privilege (State Only):
* There is no constitutional right for a professional journalist to protect their source of information; only certain states recognize such a privilege.
